The state wants to restore the 2011 penalties that can be imposed on local officials for violating a 1987 preemption law that prohibits Florida’s municipal governments from regulating firearms.
Those penalties, which can include fines up to $5,000 and removal from office, were declared unconstitutional by Leon County Circuit Judge Charles Dodson in July.
Although the Dodson’s ruling also upheld the 1987 preemption law, the state has appealed his repeal of the penalties.
Late Friday, Gov. Ron DeSantis and Attorney General Ashley Moody filed a 42-page brief asking the 1st District Court of Appeal to overturn Dodson’s ruling and restore the 2011 amendments to the 1987 law.
“The trial court’s decision is premised on unsupported theories of immunity inconsistent with the constitutional supremacy of the state’s authority over its counties and municipalities,” the brief said. “If allowed to stand, the decision will not only invite the development of a patchwork regulatory regime in the area of firearms but also render the Legislature impotent to deter power grabs by local officials in other areas.”
According to the brief, Dodson’s ruling undermines the Florida Constitution’s “hierarchical relationship” between state and local governments that “subjugates local governments’ authority to that of the Florida Legislature.”
The state’s Friday night brief was followed Monday by requests from the Florida League of Cities (FLC) and the Florida Association of Counties (FAC) to submit friend-of-the-court briefs on behalf of local governments and elected officials who challenged the law in 2018 lawsuits that were consolidated into one case before Dodson.
“The resolution of the question on appeal is of great importance to the League and FAC and their memberships of diverse local governmental entities across the state of Florida,” the FLC/FAC request said. “A determination that the penalty provisions are constitutional increases the threat of liability at significant cost to local government officials and will also have a chilling effect on individuals desiring to serve in local government.”
In 2011, lawmakers added penalties of up to $5,000 in fines and removal from office for passing gun regulations to the 24-year-old preemption law. The amendments also allow citizens and organizations to sue for damages up to $100,000 and attorney fees if they successfully sue local governments for “improper” gun regulations.
Municipalities across the state repealed ordinances they feared could conflict with preemption. Others – including Tallahassee – did not make any changes to defunct gun laws.
In 2014, the Seattle-based Second Amendment Foundation (SAF) and Florida Carry sued then-Tallahassee Mayor Andrew Gillum, two city commissioners and a former mayor for not rescinding gun control ordinances in accordance with state law.
The city’s ordinances, which included prohibitions against discharging firearms in city parks, had not been enforced since 1987. Nevertheless, the SAF and Florida Carry argued failing to formally rescind them was a “knowing and willful” contravention of state law.
In 2017, the 1st District Court of Appeal ruled in favor of Gillum and his co-defendants in the SAF/Florida Carry suit, stating it could not compel a city to repeal local ordinances it wasn’t enforcing, nor could individual elected officials be held personally liable for not repealing regulations made obsolete by state law.
Like Dodson’s July 26 ruling, the 2017 appellate court upheld the 1987 law, affirming the Legislature’s authority to preempt local laws it determines exceed the intent of state statutes.
The legal challenge before Dodson came from 30 cities, three counties and 70 elected officials in the wake of 2018’s Valentine’s Day Marjory Stoneman Douglas school shooting in Parkland, which left 17 dead.
The 2018 suit alleged the 2011 addition of penalties to preemption was “draconian,” a violation of legislative/government immunity rights and provisions, and an unconstitutional breach of separation of powers.
Dodson agreed, ruling the penalties violate elected officials’ “legislative immunity” and the constitutional separation of powers because judges could be asked to issue decisions on penalizing local officials.
“Because local governments must have what amount to small legislatures, and because courts cannot interfere in legislative processes, neither this court, nor any other court in Florida, can enforce the civil penalty provisions (of the law) against local legislators,” Dodson wrote.
But attorneys representing DeSantis and Moody rejected Dodson’s determination in their late-Friday brief.
“The state’s position is that the Legislature may penalize local officials for acting outside the scope of their authority because there is no ‘separation of powers’ doctrine that bars the Legislature from holding them accountable for their official actions,” the brief said.
